Dean v. Leonard

• Decision Date: 01 January 1864
• Citation: 9 Minn. 176
• Parties: OLIVER DEAN vs. CHARLES LEONARD.
• Court: Minnesota Supreme Court

9 Minn. 176

OLIVER DEANvs.CHARLES LEONARD.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey County.

Points and authorities for appellant: —

1. The complaint in this action states facts sufficient to constitute a cause of action for use and occupation; and duplicity, or irrelevant and redundant matter, or a

radical variance, cannot afford any ground for dismissing the action.But any attempt to limit the evidence to particular statements of facts, can only be made by motion to correct the pleading under § 80, of ch. 60, p. 542, Comp. Stat., which must be noticed before answering, and within twenty days of service.Rule 12, Dist. Court Rules;Walsh v. Kattenburgh,8 Minn. [127];Short v. McRea,4 Minn. [119].

2.The answer admits the use and occupancy of the premises by the defendant, and the value thereof during the time stated in the complaint, since a general denial of the value stated in the complaint is insufficient, being merely a negative pregnant, and bad in pleading.Lynd v. Picket,7 Minn. [194];10 Mass. 432;25 Barb. 243.

3.All distinctions between forms of action are abolished in this state, and the pleader need only state the facts which constitute a cause of action.Comp. Stat. 532; Taylor Landlord and Tenant, 641-2, and cases cited;id. 650, 655;6 Adol. & E. 829, and note;13 Johns. 239;5 Pick. 124;14 Mass. 93, 96.

Points and authorities for respondent: —

1.The action was to recover rents due upon a lease.There was no evidence whatever of the existence of any lease.The motion to dismiss, was therefore properly granted.

2.The allowance of amendments is a matter of discretion, and not reviewable by appellate courts, except in case of abuse of discretion.

3.The amendments asked changed entirely the cause of action, and were, therefore, properly denied.The original cause of action was the recovery of rents due and unpaid on a lease.The proposed cause of action was the recovery of quantum valebant for use and occupation.

Morris Lamprey, for appellant.

Lorenzo Allis, for respondent.

WILSON, J.

The complaint in this action charges that "the defendant, on or about the twenty-ninth day of October A.D. 1859, and from that time until on or about the tenth day of April.A. D. 1861, leased, hired, and rented, of and from the plaintiff, and actually was in the possession and occupancy of, and occupied, as his family residence during that time, as the tenant of the said plaintiff, and was, during all that time the tenant of the said plaintiff in, and occupying that certain brick two-story dwelling house," etc.

"That said premises were worth, and of the value of the sum and agreed price of twenty-five dollars per month for each and every month.In consideration whereof the defendant became liable, and promised said plaintiff to pay said sum therefor," etc.

The defendant, in his answer, "denies each and every allegation in the complaint."When the plaintiff closed his evidence and rested his case, the defendant"moved to dismiss the action on the ground that the evidence did not sustain the complaint."The motion was allowed, and plaintiff excepted.It is not pretended that a written lease was proven, and no evidence was given to show how much the use of the premises was worth for the time they were occupied by the defendant, and on account of the want of evidence on these two points, said motion was made and allowed.The defendant insists, that this is an action upon a lease, and, therefore, that proof of a lease is a prerequisite to a recovery.This position we think untenable.It is true that the plaintiff declares on a lease; but we think he also sufficiently stated a cause of action for use and occupation,...